Collishaw v. American Smelting Co. , 121 Mont. 196 ( 1948 )

I concur in the remanding of this cause to the district court for further proceedings.

Upon the denial on November 16, 1945, of the defendants' separate motions to strike plaintiffs' amended complaint, the defendants filed separate demurrers to such amended complaint. The filing by defendants of their separate demurrers constituted a general appearance and waives defendants' objection to any defects in the amended complaint attackable only by motion. State ex rel. Bingham v. District Court, 80 Mont. 97, 257 P. 1014. Hence, on June 20, 1946, when the trial court assumed to make separate orders sustaining defendants' separate motions to strike, which had previously been denied, the motions to strike had become dead letters and were entirely out of the case. Not only had they been ruled upon and ordered denied seven months before but, had they not already been effectively disposed of, they were waived by the filing on December 19, 1945, of defendants' demurrers. State ex rel. Bingham v. District Court, supra; State ex rel. Westlake v. District Court, 119 Mont. 222,167 P.2d 588, 163 A.L.R. 911. Thus the court's order of June 20, 1946, assuming to sustain defendants' motions to strike, which motions were directed at issues not then before the court but which had long since been determined and removed from the case, are void and of no effect.

While the case was pending with the demurrers to the amended complaint undetermined, plaintiffs on September 14, 1946, filed a second amended complaint and defendants challenged same by filing separate motions to strike the pleading from the files. The judge theretofore presiding withdrew from the cause and another district judge assumed jurisdiction and on July 16, 1947, made an order sustaining defendants' motions to strike for the reason that the second amended complaint is identical in substance and a repetition of the first amended complaint which the former judge had ruled should be stricken and by which former ruling the second judge felt himself found. As before stated, the former ruling assumed to determine matters not before the court and issues long since removed from the case and, being void, the ruling and order neither bound the second judge nor any one else.